During this summer travel season, Americans will meekly submit to searches at airports. Some types of those examinations may not be legal.
Advanced imaging technology (AIT) was first deployed by the Transportation Security Administration (TSA) in 2007. According to the TSA, “Since imaging technology has been deployed at airports, more than 99 percent of passengers choose to be screened by this technology over alternative screening procedures.”
In 2011, the United States District Court for the District of Columbia ruled that the TSA failed to properly fulfill the appropriate rule making process before using the devices. “The implementation of this technique clearly affects the privacy of passengers without a valid procedure allowing for all the facts to be reviewed and objections to be heard.” In its decision, the Court noted that “…the TSA has not justified its failure to issue notice and solicit comments…In May 2009 more than 30 organizations… sent a letter to the Secretary of Homeland Security, in which they objected to the use of AIT as a primary means of screening passengers. They asked that the TSA cease using AIT in that capacity pending ‘a 90-day formal public rulemaking process.’ The TSA responded with a letter addressing the organizations’ substantive concerns but ignoring their request for rulemaking.”
The Court ruled that the TSA must comply with valid rule making procedures. Despite the extended passage of time, the TSA has ignored the Court’s mandate. Now several organizations and individuals are moving to force the TSA’s hand.
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The Competitive Enterprise Institute (CEI) filed a lawsuit in late July against the (TSA) for ignoring the Federal District Court. According to CEI, “The lawsuit aims to hold the TSA accountable to a court’s ruling that it had violated the law by failing to follow basic required administrative procedures, including allowing the public to comment on their screening proposal. CEI is joined as co-petitioners by the National Center for Transgender Equality (NCTE) and The Rutherford Institute, as well as two CEI employees in their capacity as private individuals…The CEI action is also joined by several other groups…Constitutional attorney John W. Whiteheadsaid, ‘Despite the massive invasion of privacy perpetrated by whole body scanners on millions of air travelers and a federal court order that the TSA issue a rule on their use, the government has refused to do so, thereby avoiding providing justifications or enforceable guidelines for their use. This is another example of the government employing surveillance technologies regardless of and outside of the limits of the law…”
CEI has filed a petition for writ of mandamus asking the D.C. Circuit Court to enforce its July 15, 2011, decision that found the TSA in violation of the Administrative Procedure Act. The organization hopes to force the TSA to produce its required final rule on body scanners within 90 days.
The Rutherford Institute which has joined in the action states that “We are the unwitting victims of a system so corrupt that those who stand up for the rule of law and aspire to transparency in government are in the minority. This corruption is so vast it spans all branches of government, from the power-hungry agencies under the executive branch and the corporate puppets within the legislative branch to a judiciary that is, more often than not, elitist and biased towards government entities and corporations. The whole body imaging scanners are a perfect example of this collusion between corporate lobbyists and government officials…We the people’ have not done the best job of holding our representatives accountable or standing up for our rights. But something as invasive as these scanners certainly shouldn’t be forced on the American public without the absolute assurance that it will not harm our health or undermine our liberties. At a minimum, the TSA should be required to establish rules governing the use and deployment of these scanners and have those regulations vetted by the public.”